By Brian Johnson, Legal Practitioner, UK
By all accounts, the protest of 10th August 2022 is the most violent and deadliest Sierra Leone has recorded in its history.
Therefore, it was not misplaced when there was a clarion call by citizens, diplomatic missions, local and international organisations for an urgent independent and impartial investigations to ascertain the root cause(s) of the protest, those that instigated and perpetrated the violence that followed, possible failures in security sector response and lastly, to hold accountable all those found culpable in the grand scheme of things.
It was therefore a sigh of relief when the Presidential Press Secretary, Yusuf Keketoma Sandy, released a Public Notice dated 24th August 2022, announcing the setting up of a “Special Investigative Committee” (“SIC”) to look at, what the Public Notice termed, “the immediate and underlying causes, sources of finance, execution and consequences of the insurrection as well as the response of the security forces”.
For once, I said President Bio has gotten it right, so I thought, until I saw the laundry list of conflicted names/designation of those that are to comprise the SIC and the Terms of Reference (“ToR”), which to all intent and purposes, looks like an abstract of the actual findings of the investigation.
Investigations of these nature must be seen to be “fair and impartial”, both in composition and ToR, this is to ensure the process and outcome commands public confidence and is generally accepted. Fairness and impartiality demands that biases, whether actual or perceived, be eliminated. In the present context, bias simply means that there exists a set of facts which will lead to the conclusion in the minds of the ordinary citizens, not connected with the facts, that a person or body charged with the responsibility to arbitrate or inquire into an issue has the predisposition or tendency to make a decision in favour of or against one of the parties, agree or disagree with a particular narrative.
Actual bias is proven or genuine prejudice that person or body charged with the responsibility of arbitrating or inquiring into an issue has against a particular person or narrative. For example, where a judge has made prior conclusive remarks with respect to an issue and that issue later comes before him/her for adjudication, he or she is expected to recuse.
Perceived or apparent bias is where because of the existence of a relationship or certain state of affairs the hypothetical fair-minded and informed observer believes that a person or body charged with the responsibility to arbitrate or inquire into an issue is biased; there need not be actual bias, just the perception of it is sufficient. a case in point is the Pinochet (I) case 1998 where a judgement of the House of Lords was set aside when one of the judges that gave the Judgment, Lord Hoffman had once been a director of Amnesty International who are pursuing the case.
I have carefully looked through the composition of the SIC and its ToRs and I can safely conclude, with disappointment, that this investigation which would have been a watershed moment in bringing impunity to an end in the country, is bound to fail in its objective. The reason is simple, the public will disown whatever conclusions the SIC reaches as its composition and ToR is compromised by both actual and perceived biases.
Firstly, the inclusion of certain persons or designated offices has compromised the impartiality of the SIC either because of the responsibility of the offices they hold or their prior prejudicial public comments relating to the matter under investigation, the Protest; actual bias.
Abdulai Caulker is National Security Coordinator at Office of National Security which is responsible to coordinate the national security architecture, by asking him or another person in the security sector to partake in the investigation which has the mandate to assess the security sector response to the protest will make him a judge in his own case. Fatu Claire Hancils is Executive Director of Legal Aid Board and on 10th August 2022 she signed a press release relating to the violent protest in which she lamented that “To incite people especially our poor clients who are ill informed and can never come close to the seat of power is despicable and disgusting. So, if people say Bio must go who then will take the place of a democratically elected President the country is bigger than all the personal ambitions and self-aggrandisement of some politicians who are so desperate to have power please let us wait for the ballot box”. From what she said, she clearly has reached the conclusion that the protesters were incited to subvert the State.
Micahela Swallow, President of the Sierra Leone Bar Association on 11th August 2022 signed a press statement which concluded that “the Sierra Leone Bar Association is gravely concerned about the violent and unlawful demonstration”. Before the fact, a lawyer of above years standing concluded that the demonstration was illegal; how can she now be a member of a panel that will determine amongst other things whether the demonstration was legal or illegal in any shape or form.
President of Women’s Forum, Madam Sally Ndimawa Adams in an engagement with His Excellency the President, on 18th August 2022 at State House is reported to have said “Social Media was the main tool used to fuel and incite the August 10 2022 riots”. Again, how can she dispense her duties impartially when she has taken a definitive public position on the matter to be investigated.
Now let’s look at the composition of the SIC that exhibits instances of perceived bias. The Chairman, an erudite lawyer and academic, Emmanuel Saffa Abdulai, is presently the Chairman of the Independent Procurement Review Panel, Edina Swallow, President of the bar Association is Director of Legal, Petroleum Unit and also a Member of the Judicial and Legal Service Commission, Fatu Claire Hancils is Executive Director of Legal Aid Board, Abdulai Caulker is National Security Coordinator at Office of National Security, Abdulai Bangura is the Chairman Political Registration Commission, Dr. Victor Massaquoi is Chairman Independent Media Commission, Sheka Mansaray is the Chairman Peace Commission. Seven out of the fifteen appointed members are by definition public servants who occupy certain public offices and are serving at the pleasure of the President. They will find it very hard to reach conclusions that are contrary to public pronouncements which the President has made regarding who are responsible or incited the violence during the protest. Influencial Ministers like the Minister of Foreign Affairs, Minister of Information and Deputy Minister of Internal Affairs have all pointed fingers at oppositions figures as responsible for the violence and attempt subversion of the State.
This author is in possession of Court Documents in which one of the lawyers in the Investigation Panel has in the past file papers in the Supreme Court of Sierra Leone challenging the demand by the Sierra Leone Police that the IG must be notified for anyone to engage in any form of protest pursuant to section 17 of the Public Order Act 2022.
The lawyer argued then that Processions are not the same as protests and therefore no notification of the IG is required for protests. This author is also in possession of group WhatsApp messages in which appointed members of SIC have pointed accusing fingers at certain senior citizens and opposition Political Parties. I will wait to see whether they have it in them to see the need to recuse for the sake of justice and fair play.
How must the President proceed to appoint people to SIC.
Political appointees must be off limit and be replaced
All those names under the heading actual or perceived bias must be replaced
Rather than zero in on the President of the Bar, request the Bar Association to put forward the name of an experienced lawyer of not less than 25 years in practice with no apparent political affiliation or bias to be a member of SIC.
Get a Member of Parliament to represent each political party in parliament as there are political issues to be dealt with as well representative.
Ask the Religious Council to send a nominee rather that pinpointing the Chairman
Ask Civil Society Organisations to send in one Nominee.
Ask the disable groups to send in a nominee.
Get youth groups to send in one nominee, they are most affected by these riots and must be part of the process.
Women’s groups to send a nominee rather that pinpointing who represents them.
My suggestions will allow for a much rounded and inclusive investigative committee trusted by the people to dispense a sacred national duty, the search for Justice and solutions to our national problems.
We must be mindful that one of the unacknowledged drivers of this protest and ensuing violence is injustice, in seeking to get justice for those killed and getting to the bottom of what happened, justice must be the keyword and the hallmark of SIC.
